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KYLE KIRKUP

When should unprotected sex trigger the heavy hand of criminal law? Add to ...

A woman in Barrie, Ont., was sentenced recently to 39 months in prison. The law says that what she did constitutes aggravated sexual assault. Her crime? Failing to tell a man she knew casually, who later gave her $20, that she was HIV-positive before the two had sex in the back of his van.

The man never wore a condom. He also never contracted HIV.

When she is released, the woman will face three years probation and a sex offender designation.

This case sends a troubling message, one that flies in the face of every public health campaign you’ve ever heard – so long as you don’t have HIV, you can have as much unprotected sex as you want. You can even have sex with someone you know casually and then not bother to wear a condom.

Even when you don’t ask questions about your partner’s status, the heavy hand of the criminal law will emerge to protect you.

This case comes less than one year after the Supreme Court’s landmark decision in Mabior, a case that tried to clarify the circumstances under which a person’s failure to disclose their HIV-positive status would invalidate the person’s consent, transforming sexual activity into a criminal act.

In the unanimous decision, the Court explained that Canadians living with HIV have a legal obligation to disclose their status prior to engaging in sexual activities where there is a “realistic possibility that HIV will be transmitted.”

In circumstances where there is the combination of a condom and a low viral count, individuals don’t have to disclose their HIV-positive status. Given the bodily harm associated with contracting HIV, anything less is considered aggravated sexual assault. The maximum sentence for the crime is life imprisonment.

Some have heralded the decision in Mabior as a victory. If you take consent, bodily integrity, and equality seriously, they tell us, then the logical conclusion is that an individual’s failure to disclose their HIV-positive status should be treated as an aggravated sexual assault.

Others argue that the decision is emblematic of a larger law and order trend emerging in Canada – they are skeptical that putting people in jail for longer periods of time will enhance anyone’s equality. They are also concerned that the decision will undermine the important work being done by public health officials to combat the spread of HIV.

In the Barrie case, the woman sought out medical treatment and had a low viral count. But a low viral count by itself is not enough.

The case conveys an alarming idea about sex – about what steps parties should take to protect themselves, and about what duties HIV-negative people have to ask questions about their partner’s status.

In considering these questions, it is important to note the considerable power imbalance between the two. The woman was living with HIV, had previously been in conflict with the criminal justice system, and may have been engaged in some form of sex work. There is strong evidence to suggest that Canada’s current laws expose sex workers to considerable levels of violence and, as the Robert Pickton case demonstrates, even death. The Supreme Court is currently considering whether Canada’s criminal laws related to sex work comply with the Charter of Rights and Freedoms.

We know less about the complainant. What we do know, however, is that he had the means to give the woman money and had access to an automobile.

Given this power imbalance, it seems wholly unrealistic to expect the woman to either insist that the man wear a condom or disclose her HIV-positive status.

Ultimately, the Barrie case challenges us to re-evaluate the idea that HIV non-disclosure laws are, or ever will be, equality-enhancing.

Sex is risky. Refusing to wear a condom and then not asking any questions of one’s partner should not be enough to trigger the heavy hand of the criminal law.

Kyle Kirkup is a 2013 Trudeau Foundation Scholar and a doctoral candidate at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality, and gender identity.

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